HomeMy WebLinkAbout02-3018 Equity (2)CUMULUS BROADCASTING,
INC., t/d/b/a WNNK,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Vo
BRUCE BOND, MATTHEW
RABACK, a/k/a "STRETCH"
and CITADEL
COMMUNiCATiON
CORPORATIONS, t/d/b/a
CITADEL BROADCASTING
COMPANY, t/d/b/a WRKZ
102.3 FM,
Defendants
CIVIL ACTION - EQUITY
NO. 02-3018 CIVIL TERM
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., April 4, 2003.
In this tenaciously defended equity case, Defendants Bruce Bond and Citadel
Communication Corporations have appealed from the denial of a petition to dissolve a
preliminary injunction enjoining Defendant Bond, a well-known radio on-air personality,
from continuing his employment as host of a radio program with Defendant Citadel for
an effective period of six months.~ Defendant's earlier appeal from the issuance of the
preliminary injunction is also pending in the Superior Court.2 The preliminary injunction
has expired.
The preliminary injunction, which was premised on a non-compete provision
included in an agreement between Defendant Bond and his previous employer, Plaintiff
Cumulus Broadcasting, inc., was granted based on the findings, inter alia, that "the
'unbridled continuation of the violation' of the [non-compete provision] would
potentially cause a continuing erosion of Plaintiff's market share and a corresponding
~ The six-month effective period of the preliminary injunction is explained in a detailed
opinion accompanying the court's issuance of the preliminary injunction. See Op. and
Prelim. Inj., Sept. 27, 2002.
~ See Cumulus Broad, Inc. v. Bond, 1694 MDA 2002 (Pa. Super. Ct. Jan. 14, 2003).
drop in Plaintiff's advertising revenues" and that "the overall losses that may result...
constitute an 'immediate and irreparable harm.'"3
At the hearing on the petition to dissolve the preliminary injunction, Defendants
contended, based on evidence relating to an increase in the average number of listeners to
the radio station operated by Plaintiff after Defendant Bond began his employment with
Defendant Citadel, that Plaintiff had suffered no harm in terms of loss of listeners and
that, for this reason, the preliminary injunction should be dissolved. Following the
hearing, the court denied the petition.4
Defendants have appealed to the Pennsylvania Superior Court from the denial of
the petition to dissolve the preliminary injunction.5 In their lengthy statement of matters
complained of on appeal, Defendants have expressed the grounds for the appeal as
follows:
[1-2.] Defendants categorically assert that the Court erred [as] a
matter of law and fact in granting the injunction in the first instance
because [Plaintiff] failed to satisfy its burden of proving any one of the
essential prerequisites for entry of [a] preliminary injunction, and.., the
Court erred as a matter of law and fact in refusing to dissolve the injunction
because the weight of the testimony and evidence elicited at the.., hearing
overwhelmingly established that [Plaintiff] had suffered no harm during the
three-month period that [Defendant] Bond appeared on the air at
3. In denying Defendants' [petition to dissolve], the trial court
misapplied the law of Pennsylvania governing issuance of preliminary
injunctions and enforcement of post-employment covenants not to compete,
and failed to give appropriate weight to the evidence in that Defendants
established that [Plaintiff] failed to establish the essential elements
prerequisite to issuance of a preliminary injunction to enforce a non-
compete and that enforcement of the non-competition could no longer serve
any legitimate interest on the part of [Plaintiff] .... Defendants presented
irrefutable proof that.., during the period that [Defendant] Bond appeared
on the air at WRKZ, Plaintiff's market share continued to increase, thereby
Op. and Prelim. Inj., Sept. 27, 2002.
Order of Ct., Jan. 6, 2003.
Defs.' Notice of Appeal, filed Jan. 14, 2003.
2
proving that Plaintiff had suffered no harm at all and would not suffer any
harm, let alone irreparable harm ....
4. In denying Defendants' [petition to dissolve], the trial court
further misapplied the law of Pennsylvania governing issuance of
preliminary injunctions and enforcement of post-employment covenants not
to compete, and failed to give appropriate weight to the evidence in that the
Court had concluded in its Order and Opinion of September 27, 2002, that
the potential harm to Plaintiff's market share ratings outweighed the injury
that granting the injunction would cause to Defendants, and the Defendants
presented irrefutable proof at the hearing on their [petition to dissolve]
that... Plaintiff suffered no harm whatsoever as a result of the alleged
competition, and thereby proving that greater harm resulted from granting
the injunction than from denying it ....
5. In denying Defendants' [petition to dissolve], the trial court
further misapplied the law of Pennsylvania governing issuance of
preliminary injunctions and enforcement of post-employment covenants not
to compete, and failed to give appropriate weight to the evidence in that the
Court had concluded in its Order and Opinion of September 27, 2002, that
Plaintiff's market share ratings were a legitimate business interest that the
covenant not to compete was designed to protect, and the Defendants
presented irrefutable proof at the hearing on their [petition to dissolve] that
[Defendant] Bond's ratings had been declining during the final ratings
periods that he appeared on the air at WNNK, that WNNK's ratings began
to improve immediately after it fired [Defendant] Bond, [and] that during
the period that [Defendant] Bond appeared on the air at WRKZ, Plaintiff's
market share ratings continued to increase, thereby proving that [Plaintiff]
no longer valued [Defendant] Bond, had trumped up a reason to fire him
"for cause" and that [Plaintiff] suffered no harm whatsoever as a result of
the alleged competition, and therefore enforcement of the covenant not to
compete does not serve any legitimate business interest of [Plaintiff] ....
6. In denying Defendants' [petition to dissolve], the trial court
further misapplied the law of Pennsylvania governing issuance of
preliminary injunctions and enforcement of post-employment covenants not
to compete, and failed to give appropriate weight to the evidence in that the
Court had concluded in its Order and Opinion of September 27, 2002, that
Plaintiff's market share ratings emanating from [Defendant] Bond's on-air
work were a legitimate business interest that the covenant not to compete
was designed to protect, and the Defendants presented irrefutable proof at
the initial hearing and at the hearing on their [petition to dissolve] that...
WNNK terminated [Defendant] Bond for business reasons and not for
"Cause," and that WNNK therefore has not established its "clear right to
relief' inasmuch as it can have no legitimate business interest in restraining
3
the post-employment activities of an employee that it discards as
worthless ....
7. The trial court erred to the extent that it excluded or limited
the admission of evidence or testimony regarding WNNK's market share
ratings. [Plaintiff], which had the burden of proof at the initial hearings,
presented absolutely no ratings evidence at all, other than admissions from
[Ronald J. Giovanniello, the station manager of WNNK,] that ratings were
the heart of the radio industry and WNNK's ratings were declining when
[Defendant Bond] was on the air there .... [T]his Court, in its Order and
pinion dated September 27, 2002, concluded that the potential harm to
[Plaintiff's] actual ratings constituted irreparable harm. Thus, it was
essential for the Court to receive [Plaintiff's] actual ratings for the periods
that [Defendant] Bond was on the air at WRKZ, for the period that
[Defendant] Bond was unemployed, and for the period that [Defendant]
Bond was on the air at WRKZ, so that the Court could fully and fairly
evaluate [Plaintiff's] claims of irreparable harm to determine whether
[Plaintiff] had satisfied that threshold requirement of proving actual injury
and not merely speculative harm. Thus it was error for the trial court to
exclude or limit the admission of any evidence regarding [Plaintiff's]
market share ratings.
8. The trial court erred to the extent that it failed or refused to
consider evidence or testimony regarding WNNK's market share ratings.
[Plaintiff], which had the burden of proof at the initial hearings, presented
absolutely no ratings evidence at all, but argued that potential harm to its
market share ratings was its greatest concern. [T]his Court, in its Order and
Opinion dated September 27, 2002, concluded that the potential harm to
[Plaintiff's] ratings constituted irreparable harm. Thus, it was essential for
the Court to objectively evaluate [Plaintiff's] actual ratings for the periods
that [Defendant] Bond was on the air at WRKZ, for the period that
[Defendant] Bond was unemployed, and for the period that [Defendant]
Bond was on the air at WRKZ, so that the Court could fully and fairly
evaluate [Plaintiff's] claims of irreparable harm to determine whether
[Plaintiff] had satisfied that threshold requirement of proving actual injury
and not merely speculative harm. Thus it was error for the trial court to
refuse of fail to consider any evidence regarding [Plaintiff's[ market share
ratings.
9. The trial court erred to the extent that it relied upon any
ratings or ratings trends for [Plaintiff] that purported to measure any market
share ratings for any period after October 1, 2002, the date on which
[Defendant] Bond was removed from the air pursuant to the Order of this
Court dated September 27, 2002. The Court further erred to the extent it
may have accepted [Plaintiff's] contradictory arguments and statements to
4
the effect that "ratings are a red herring" when in fact [Plaintiff] and the
Court both relied upon [Plaintiff's] asserted concern over loss of ratings,
which undisputedly measure market share, to arrive at the finding of
irreparable harm, balancing of the equities, and clear right to relief in
[Plaintiff's] favor.
10. The trial court erred to the extent that it considered any
ratings evidence, testimony or argument regarding WRKZ's market share
ratings for any period. [Plaintiff] bore the burden of proof to establish that it
had suffered some decline in market share to establish that essential
prerequisites to issuance of a preliminary injunction to enforce a post-
employment covenant not to compete. Because [Plaintiff] failed to prove
that it had suffered actual of potential [harm], its right to relief was clear,
that greater injury would result form denial than from grant of the
injunction, or any other essential prerequisite, the injunction should have
been denied, and this Court erred as a matter of law and fact in refusing to
dissolve the injunction in light of the evidence presented at the hearing on
the [petition to dissolve]. It is entirely irrelevant whether and how WRKZ's
ratings were impacted by Bond's activities, and it was error for the Court to
give any consideration to any such evidence or argument, if in fact it did
6
SO.
This opinion in support of the denial of the petition to dissolve the preliminary
injunction is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).
STATEMENT OF FACTS
The issues and facts involved in this matter, which were discussed in more detail
in the underlying case,7 may be summarized as follows:
Plaintiff is Cumulus Broadcasting, Inc., a company that operates an
FM radio station known as WNNK-FM 104 (hereinafter WNNK) at 3400
North Sixth Street, Harrisburg, Dauphin County, Pennsylvania. Defendant
Citadel Communications Corporation is a company that operates an FM
radio station known as WRKZ-FM 102.3 (hereinafter WRKZ) at 1703
Walnut Bottom Road, Carlisle, Cumberland County, Pennsylvania .... The
broadcasting industry in central Pennsylvania is highly competitive, and the
6 Defs.' Statement of Matters Complained of on Appeal, filed Feb. 19, 2003; see Pa.
R.A.P. 1925(b) (providing that, on order of court, the appellant should file a "concise
statement of the matters complained of on the appeal").
7 Hereinafter, all references to the "underlying case" are intended to be understood as
references to the opinion issued by the court on September 27, 2002, that adjudged of the
issues raised in Plaintiff's petition for preliminary injunction.
5
success of a station, which is based primarily on the generation of
advertising revenues, is directly related to the number of listeners to that
radio station. Both WNNK and WRKZ target listeners in substantially the
same broadcasting region, known as the Harrisburg-Lancaster-York
"Designated Market Area" (hereinafter DMA), which encompasses several
counties, including Cumberland County, in the central Pennsylvania area.
Defendant Bruce Bond is an adult individual residing at 219
Verbeke Street, Harrisburg, Dauphin County, Pennsylvania[, who, flor
several years prior to 2001, ... [was] employed by Plaintiff [as host of] a
radio program, called the "Late Afternoon Show," that was broadcast
Monday through Friday from 3:00 p.m. until 7:00 p.m. on WNNK. The
"Late Afternoon Show" consisted primarily of "discussions" and "banter"
among Defendant Bond, who was the primary host, [Matthew] Raback,
8
known as "Stretch" on the air, and other co-hosts and guests ....
Under Defendant Bond's employment agreement with Plaintiff, if he was
terminated "with cause," Defendant Bond was prohibited from engaging in employment
with "a radio station broadcasting within the Harrisburg-York-Lancaster" DMA for a
period of one year following his termination. On December 10, 2001, after Defendant
Bond had continued to make "disparaging oral or written statements" about other
employees of Plaintiff in violation of Defendant Bond's employment contract and in spite
of several written and verbal admonitions by management for Plaintiff, Defendant Bond
9
was terminated for cause.
On June 24, 2002, approximately six months after his termination, Defendant
Bond commenced employment with Plaintiff as host of a new radio program, the "Bruce
Bond and Stretch Morning Show." The program, which was co-hosted by Mr. Raback,
employed the same conversational format as the previous "Late Afternoon Show,"
broadcast on WNNK. As stated previously, WRKZ, like WNNK, broadcasts primarily in
the Harrisburg-Lancaster-York DMA. l0
8 Op. and Prelim. Inj., Sept. 27, 2002, at 2-7.
9]d'
~° ld'
6
On September 27, 2002, following a hearing, a preliminary injunction was issued
enjoining Defendant Bond from continuing his "present employment with Defendant
Citadel for a period of one year from December 10, 2001, plus a period equal to that of
his recent employment with Defendant Citadel.''~ The injunction became effective on
October 2, 2002, with the filing of the required bond by Plaintiff.
DISCUSSION
It is well settled that, while a court retains the authority to modify or dissolve an
injunction previously issued, the court may do so only if the enjoined party establishes
either a "change in the controlling facts on which the injunction rested" or a change in the
law, "common or statutory," such that modification of the injunction would be "just and
equitable.''~2 Ladner v. Siegel, 298 Pa. 487, 497, 148 A. 699, 702 (1930), quoted with
approval in Soja v. Factoryville Sportsmen's Club, 416 Pa. Super. 29, 33-36, 610 A.2d
ll/d'
12 In Ladner v. Siegel, 298 Pa. 487, 148 A. 699 (1930), the Pennsylvania Supreme Court
held, in pertinent part, as follows:
The modification of a decree in a preventive injunction is inherent in the
court which granted it, and may be made, (a) if, in its discretion judicially
exercised, it believes the ends of justice would be served by a modification,
and (b) where the law, common or statutory, has changed, been modified or
extended, and (c) where there is a change in the controlling facts on which
the injunction rested.
Id. at 497, 148 A. at 702. Although this language suggests the existence of three
situations in which a court may modify an injunction, Pennsylvania courts have generally
interpreted Ladner as permitting modification only when one of the latter two elements is
satisfied, see, e.g., Soja v. Factoryville Sportsmen's Club, 416 Pa. Super. 29, 33-36, 610
A.2d 491,493-94 (1987) (noting use of conjunctions but stating that "Ladner criteria" are
of a "disjunctive nature"); see also Whibby v. Commonwealth, No. 419 M.D. 2000, 2003
WL 1698855, at *1 (Pa. Commw. Ct. Apr. 1, 2003); Borough ofTrappe v. Longaker, 59
Pa. Commw. 572, 430 A.2d 713, 715-16 (1981), an interpretation that is supported by
subsequent statements in Ladner. E.g., Ladner, 298 Pa. at 497, 148 A. at 702 ("In
considering the causes which call for a modification of an injunction, we may pass the
first--wherein the action of the court below may properly be considered as an
interpretation of its own decree .... "); cJ. Soja, 416 Pa. Super. at 33-36, 610 A.2d at 493-
94 ("To reiterate, the Ladner Court found that the first criterion need not be delved into
because it drew its strength from the lower court's interpretation of its own decree.").
7
491, 493-94 (1987); see also Pa. R.C.P. 1531(c) ("Any party may move at any time to
dissolve an injunction."). This limitation on the "inherent" power of a court of equity to
modify its order strikes a sound compromise between the need for finality of judgments
and the recognition of the equitable nature of the injunction.~3 See Ladner, 298 Pa. at 497,
148 A. at 702. Thus, in the context of a petition to modify or dissolve an injunction, the
court properly may restrict its consideration to evidence and arguments that suggest a
change in the law or material facts underlying the injunction, and may exclude evidence
that challenges only the propriety of the initial injunction, a matter appropriately left to an
appellate court. See 46 S. 52nd Street Corp. v. Manlin, 404 Pa. 159, 160-61, 172 A.2d
154, 155 (1961); see also Pa. R.E. 401-402 (providing for the inadmissibility of evidence
that is not relevant to the determination of the action); Pa. R.A.P. 31 l(a)(4) (providing
that an interlocutory appeal may be taken from an order granting, continuing, modifying,
refusing or dissolving injunctions, or refusing to dissolve or modify injunctions"); Pa.
R.A.P. 1701(b)(6) (providing that, after an appeal is taken, the trial court may "[p]roceed
further in any matter in which a non-appealable interlocutory order has been entered")
(emphasis added); Pa. R.C.P. 153 l(c).
Before considering the merits of the present case, it is necessary to identify those
allegations that are relevant to the determination of whether a change in circumstances, in
either the law or the material facts, has occurred since the entry of the preliminary
injunction. After a review of Defendants' statement of matters complained of on appeal,
and of the arguments presented at the hearing on this matter, it appears clear that most of
Defendants' contentions are predicated upon purported deficiencies in the rationale of the
underlying case, and not any subsequent change in circumstances that now render the
original adjudication inequitable.~4 Those allegations that may be construed as pertinent
~3 As stated by the Pennsylvania Supreme Court in Ladner: "The power of the [court] to
modify in such cases cannot be controlled by term rules, otherwise equity would cease to
be equity and become a hard and fast taskmaster." Ladner, 298 Pa. at 496, 148 A. at 701.
~4 See, e.g., Defs.' Statement of Matters Complained of on Appeal, filed Feb. 19, 2003,
para. 2 ("Defendants categorically assert that the Court erred [as] a matter of law and fact
8
to the determination of whether a material change in circumstances occurred subsequent
to the entry of the injunction relate to the argument, based on evidence in the form of
listener ratings, that Plaintiff did not suffer harm from Defendant Bond's employment, in
violation of the post-employment covenant, with Defendant Citadel.~5 Because this
contention speaks primarily to the element of irreparable harm,~6 the discussion below
will focus on this issue.
in granting the injunction in the first instance because [Plaintiff] failed to satisfy its
burden of proving any one of the essential prerequisites for entry of [a] preliminary
injunction .... "); id. para. 5 ("[Plaintiff] no longer valued [Defendant] Bond, had
trumped up a reason to fire him "for cause" and that [Plaintiff] suffered no harm
whatsoever as a result of the alleged competition, and therefore enforcement of the
covenant not to compete does not serve any legitimate business interest of
[Plaintiff] .... "). id. para. 8 ("The trial court erred to the extent that it failed or refused to
consider evidence or testimony regarding WNNK's market share ratings. [Plaintiff],
which had the burden of proof at the initial hearings, presented absolutely no ratings
evidence at all, but argued that potential harm to its market share ratings was its greatest
concern.").
~s Defendants neither alleged in the petition nor argued at the hearing that the law
applicable to post-employment covenants not to compete changed following the entry of
the injunction in this case. Consequently, entitlement to a dissolution of the injunction
rested on their ability to establish a "change in the controlling facts on which the
injunction rested." See Ladner, 298 Pa. at 497, 148 A. at 702.
16 Irreparable harm is one of five elements that must be established to prove entitlement
to a preliminary injunction.
First, the injunction must be "necessary to prevent immediate and
irreparable harm which could not be compensated by damages." Second,
the injunction must have the effect of restoring the parties to the status quo
"as it existed immediately prior to the alleged wrongful conduct." Third,
the requested injunction must be "reasonably suited" to the abatement of
the objectionable activity. Fourth, the moving party's right to relief must be
"clear" and the wrong must be "manifest." Fifth, the injunction must be
required to avoid a comparably greater injury than that which would result
by a refusal to grant it.
Op. and Prelim. Inj., Sept. 27, 2002, at 17 (quoting John G. Bryant Co. v. Sling Testing &
Repair, Inc., 471 Pa. 1, 6-7, 369 A.2d 1164, 1166-67 (1977)).
9
With respect to the requirement of "immediate and irreparable harm," courts have
consistently found that such harm may be established by evidence that the moving party
will suffer a competitive disadvantage if the objectionable activity is permitted to
continue. E.g., Carlini v. Highmark, 756 A.2d 1182, 1188 (Pa. Commw. Ct. 2000),
appeal denied, 565 Pa. 676, 775 A.2d 809 (2001);//K. Penn Specialty MSO, Inc. v. No/an,
737 A.2d 295, 299 (Pa. Super. Ct. 1999). Even if the immediate effect of a refusal to
issue an injunction would be merely slight monetary losses, irreparable harm is
established if "the plaintiff' s proof of injury.., foreshadows the disruption of established
business relations which would result in incalculable damage." Id; see also New Castle
Orthopedic.4ssocs. v. Burns, 481 Pa. 460, 466, 392 A.2d 1383, 1386 (1978) (suggesting
that consideration of the "special" or "unique" character of the employee's services is
appropriate in determining whether irreparable harm is probable). In other words, "[i]t is
not the initial breach.., which necessarily establishes the existence of irreparable harm
but rather the threat of the unbridled continuation of the violation and the resultant
incalculable damage to the former employer's business that constitutes the justification
for equitable intervention." John G. Bryant Co. v. Sling Testing & Repair, Inc., 471 Pa. 1,
7, 369 A.2d 1164, 1167 (1977). In assessing the threat of irreparable harm, it is
appropriate to consider the representations of competing businesses as to the effect of the
breach and any incursions by those businesses into the consumer market targeted by the
plaintiff. Courier Times, Inc. v. United Feature Syndicate, Inc., 300 Pa. Super. 40, 56-57,
445 A.2d 1288, 1296-97 (1982) (finding irreparable harm to the plaintiff newspaper from
a competitor's publication of a syndicated comic strip based, inter alia, on evidence that
the competitor placed the comic strip in a list of "special features," demonstrating its
"unique and superior value"), cited with approval in Santoro v. Morse, 781 A.2d 1220,
1228 (Pa. Super. Ct. 2001); cf 144. Penn Specialty MSO, Inc., 737 A.2d at 299-300
(examining activities of employee in competing with former employer).
In the present case, based on the record presented at the hearing on the petition to
dissolve the preliminary injunction, the court was of the opinion that Defendants had not
presented sufficient evidence of a change in material circumstances so as to warrant the
10
dissolution or modification of the injunction. Defendants' primary evidence was in the
form of ratings, which showed generally that, during the time when Defendant Bond was
on the air at WRKZ, the ratings for WNNK, particularly in WNNK's target demographic
of women ages twenty-five to fifty-four, increased.17 However, Plaintiff offered
testimony by Ronald J. Giovanniello, the station manager of WNNK, that the ratings
measurements were volatile, and often could not accurately reflect current listener
preferences.~8 Further, and perhaps more importantly, Mr. Giovanniello testified that the
recent increase in ratings could be explained by the station's decision to alter its
programming format, an action that would cause instability in the ratings before resulting
in a gradual increase in the number of listeners.~9 Based on the testimony of Mr.
Giovanniello and others suggesting that the ratings measurements did not accurately
reflect the impact on Plaintiff of Defendant Bond's employment with WRKZ, and
because the ratings themselves did not exhibit a uniform increase throughout this
period,2° the court was of the view that the evidence was insufficient to establish a change
in circumstances so as to require the dissolution of the preliminary injunction.
Further, even if the evidence relating to WNNK's ratings was to be given the
definitively positive construction advanced by Defendants, the evidence relating to
WRKZ's ratings militated against a conclusion that Defendant Bond's employment with
Plaintiff's competitor was of no significant consequence to Plaintiff. During the period
that Defendant Bond was employed with WRKZ, the station's ratings increased,
particularly for the morning period and for the demographic of women ages twenty-five
~? See Defs.' Exs. 1-2, Hr'g, Jan. 2, 2003 (hereinafter Defs.' Ex. ~; N.T. 11-24, 59,
Hr'g, Jan. 2, 2003 (hereinafter N.T. ~. However, it should be noted that, while these
reports showed a general increase in ratings, they also showed a decrease in certain
ratings, for example, in WNNK's target demographic of women ages twenty-five to fifty-
four during the afternoon period.
la N.T. 20-27, 31, 38-39, 71-76; see also N.T. 80, 84-85.
19 N.T. 72.
2o See supra note 17 (discussing disparate signals in ratings of WNNK).
11
to fifty-four, by several hundred percent.2~ Matthew Raback, who co-hosted the "Bruce
Bond and Stretch Morning Show" on WRKZ, agreed that Defendant Bond's participation
in the show "had a significant impact on the local ratings" and that the show was the
primary ratings draw for WRKZ.22 Michael Shannon, manager of WRKZ, also testified
that Defendant Bond's employment corresponded with a significant ratings increase.23
Thus, in contrast to the evidence relating to the ratings of WNNK, which established an
increase in the number of listeners but could not identify the cause of that increase, the
evidence relating to the ratings of WRKZ clearly showed that Defendant Bond's presence
produced an immediate and significant increase in the number of listeners of WRKZ. In
light of the extremely competitive nature of the radio industry, and because the ratings
increases of WRKZ came primarily from the same demographic market targeted by
WNNK, the court is of the opinion that Defendant Bond's continuing employment with
WRKZ placed WNNK at "competitive disadvantage" in the marketplace. As discussed in
the underlying case, the market of listeners is "undefined and continuously changing,"
and, for that reason, damages based on the loss of listeners, and the potential resulting
loss of advertisers, cannot be adequately determined.24 Thus, the finding of irreparable
harm, which was supported by the evidence presented at the initial hearing, was not
undermined by the evidence presented at the petition to dissolve the injunction.
With respect to Defendants' remaining allegations, challenging the continuing
propriety of the court's findings as to the other prerequisites to the issuance of a
preliminary injunction25 in light of the ratings evidence discussed above, these
contentions are answered by the disposition of Defendants' claims with respect to the
alleged lack of irreparable harm and the court's discussion of these issues in the previous
2~ See Defs.' Exs. 1-2; N.T. 27-28, 59, 76, 88.
22 N.T. 51-54.
23 N.T. 88.
24 See Op. and Prelim. Inj., Sept. 27, 2002.
25 See supra note 16 (outlining elements of preliminary injunctive relief).
12
case. Defendants did not present sufficient evidence to suggest that the court should
revise its findings that the injunction would have the effect of restoring the parties to the
status quo ante, that the injunction was "reasonably suited" to the abatement of the
objectionable activity, that the injunction was required to avoid a comparably greater
injury, and that Plaintiff established a "reasonable likelihood of success on the merits" of
the action to enforce the post-employment covenant not to compete. Accordingly, it is
believed that it was appropriate to deny Defendants' petition to dissolve the preliminary
injunction.
BY THE COURT,
Anthony J. Nestico, Esq.
Richard B. Druby, Esq.
840 East Chocolate Avenue
Hershey, PA 17033
Attorneys for Plaintiff
John J. Myers, Esq.
Adam M. Schienvold, Esq.
Allan W. Brown, Esq.
Bridget E. Montgomery, Esq.
213 Market Street, 8th Floor
P.O. Box 1248
Harrisburg, PA 17108-1248
Attorneys for Defendants
J. Wesley Oler, Jr., J.
13